Role of the security council in international criminal justice: analyzing the wide discretionary powers of the security council under article 39 of the United Nations charter

Abstract

“The problem isn’t the abuse of power; it’s the power to abuse”. – Mike Cloud. Article 39 of the United Nations Charter clearly states in its wording that “…the Security Council shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” However, even with the inference of Articles 41 and 42, it is not clear the extent to which the Security Council is bound. Being a body of such abounding political nature, should it have judicial authority to divest in subsidiary institutions selectively? This hereby is the crux of this paper. The aim of this dissertation is to critically investigate and criticize the role the Security Council has in international justice (while still acting on its rightful mandate to maintain international peace and security) and the selective nature of its intervention. Much dissatisfaction and criticism has been dished out within the international community regarding the role and powers of the Security Council with regard to its abuse of powers; but this discussion shall confine itself to scrutinizing its actions of establishing ad hoc international criminal tribunals in the name of Chapter VII of the United Nations Charter. Indeed, power must never be trusted without a check. cil under article 39 of the United Nations charter